Health and Safety - Adequate Records

This is another guest blog: this time from Peter, aka: "Hagrid". Hagrid is an ex-EHO who works for me as a trainer, a provider of excellent Food Safety Consultancy, a good safety all-rounder and who gives first class "pragmatic" advice to clients.

Health and safety documentation within businesses varies from bureaucratic nightmares that no one will ever read or use to total non existence.  Somewhere in the middle is sensible, concise documentation that can clearly be understood and used.  Apart from being a useful management tool, good health and safety documentation will support a defence in law when things go wrong.

The grounds for prosecution in health and safety law are not based so much on whether an event took place, but on the apparent lack of controls in place.  In fact there does not have to be any accident for a prosecution to be successful, the enforcement officer just has to prove that reasonable health and safety procedures were not there.  Much of the evidence leading to prosecution and most of the argument in court will be based on two issues: were adequate risk assessments carried out and did adequate training take place.  Without adequate documentation it is almost impossible to defend these key points.

Civil cases for compensation are, of course, based on outcome: the degree of suffering or loss.  They also consider, however, what efforts the defendant made to reduce the risk from the particular hazard being considered and how much the claimant may have contributed to their own suffering or loss.  A defence against a claim can only be attempted with clear health and safety records and documentation.
The most important documents in defending the above cases are: risk assessments and their associated method statements, training records and the accident record.

The law requires all work activities to be risk assessed.  We obviously do not document all risk assessments, or we would be buried in paper, but we are legally required to document ‘significant findings’ from risk assessment.  That means we should record findings were the risk is deemed to be greater than normal day to day life.  That is why we generally do not have written method statements for crossing the road, even though it may be the most dangerous thing you do at work, but we do have them for operating fork lift trucks or food slicers.  We do not have to record the whole risk assessment process as long as it is obvious that the resulting method statement is clearly derived from a risk assessment.  Where we are not required to provide written findings from risk assessment we may still be required to prove we risk assessed the activity.  This can usually be done by referring to adequate checklists and training documentation.
Training records must demonstrate that every employee has had adequate induction training and specific training for the tasks they are required to carry out.  The record should be dated and signed by the trainer and the trainee or certificated by a reputable third party.  The content of the training must be demonstrated by sufficient detail or a recognised syllabus.  It would not be adequate for the record to simply state ‘health and safety’ or ‘fire safety’.

The accident record must be in sufficient detail to act as a useful management tool in preventing future accidents, to defend against false and exaggerated claims and to support valid claims.  Remember that a claim could take place long after everyone has forgotten the details of an accident, so the record must show clearly the nature and extent of the injury, how the accident occurred and what action was taken after the event.

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DSEAR - Dangerous Substances and Explosive Atmosphere Regulations 2002

I have resurrected an older Q&A article about the Dangerous Substances and Explosive Atmosphere Regulations 2002 (DSEAR). I trust that thye rteader will find the information useful.

 

What are the aims of the Dangerous Substances and Explosive Atmosphere Regulations 2002 (DSEAR)?

DSEAR enacted into UK law the European Directive ATEX 137 and the safety aspects of the Chemical Agents Directive.  It applies to all dangerous substances at nearly every business in the UK.  DSEAR sets minimum requirements for the protection of workers from fire and explosion risks arising from dangerous substances and potentially explosive atmospheres.  As with other similar legislation, such as COSHH, it complements the requirement to manage risks under the Management of Health and Safety at Work Regulations 1999.  To comply with the requirements of DSEAR, employers must:

• Carry out a risk assessment of any work activities involving dangerous substances;
• Provide technical and organisational measures to eliminate or reduce as far as is reasonably practicable the identified risks;
• Provide equipment and procedures to deal with accident and emergencies;
• Provide information and training to employees;
• Classify places where explosive atmospheres may occur into zones, and mark the zones where necessary.

Can I integrate the DSEAR Risk Assessment with other risk assessments?

As with all modern safety legislations, risk assessment is at the very heart of the Dangerous Substances and Explosive Atmospheres Regulations 2005 (DSEAR).  This does not mean, however, that distinct DSEAR risk assessments are required.  In the event that your current risk assessments (such as those that are required under the Management of Health and Safety at Work Regulations 1999) address adequately all of the issues required under DSEAR, then there is no need to produce new risk assessments to comply with the requirements of DSEAR.  As with all other risk assessments, DSEAR risk assessments must be kept up to date and reviewed in the event of any significant change or if thought to be out of date for any reason.

In the same way, DSEAR assessments may be integrated with COSHH assessments.  It is possible to have one assessment dealing the use, handling and storage of a substance (or range of substances) that addresses the fire and explosion risks as well as the health effects.  In some circumstances, this may be the most appropriate way to proceed as it will have the advantage of reducing the total number of risk assessments and should not compromise health or safety.  Typical examples of where such an approach could work well are in the areas of paint mixing and painting, fuel handling/dispensing, etc.

Are there any special areas that I should consider?

All areas within the workplace where explosive atmospheres may collect must be considered as part of the (DSEAR) risk assessment.  Special consideration should be given to areas where explosive atmospheres may develop due to the collection of solvent vapours, but are not the immediate areas where these substances are used, handled or stored.  Such areas need not be the main work area, but may be adjacent to the work areas and include cellars and vehicle inspection pits, etc.  Similarly, duct work that is used to transport dangerous substances away from the work area (such as local exhaust ventilation systems) may be areas where an explosive atmosphere may form and should be considered as part of the DSEAR risk assessment.  Other areas that should be considered are those in the vicinity of pipe work (especially joins) and pumps used for the transfer of dangerous substances.

Are there any particular training requirements associated with DSEAR?

Training is an essential part of DSEAR risk assessment process and the control measures that are introduced following the risk assessment.  Employees at different levels within the Company will have different training needs.  Those involved in the DSEAR risk assessment and the implementation of the control measures arising from the assessment will require the most detailed training.  There is a requirement to provide suitable and sufficient instruction, information and training to all employees that may be exposed to the risks associated with dangerous substances.  Typically, the information provided to employees should include:

• the identities and locations of dangerous substances;
• associated hazards;
• sources of ignition, including smoking;
• access to copies of any relevant safety data sheets;
• risk assessment factors resulting from relevant risk assessments;
• the control and/or mitigation measures to be used, including safe system of work;
• reporting, accident, evacuation and emergency procedures

Training and instruction should include elements of theory as well as practice. Training in the use and application of control measures and equipment should be carried out taking into account recommendations and instructions supplied by the manufacturer.  The employer should consider how the training, information and instruction are to be delivered in order to deliver that which is the appropriate to their own circumstances.  In most workplaces, options could include: classroom style training sessions; individual training sessions or toolbox talks.

Do I need to provide employees with antistatic overalls and footwear? 

As with many questions, the answer is: it depends.  It depends on the findings of the (DSEAR) risk assessment and the control measures that are required to reduce the risks down to as low a level as is reasonably practicable.  If the risk assessment indicates that anti static personal protective clothing is required to control the risks of ignition of an explosive atmosphere from a static discharge then the employer must provide the employees with suitable antistatic personal protective clothing (such as overalls and footwear).  As with all PPE issued for the purposes of health and safety at work, this equipment must be provided to the employee free of charge.

It should be noted, however, that the effectiveness of antistatic footwear can be reduced, or even nullified, in several ways.  If the footwear is not cleaned on a regular basis, build up of insulating materials (such as resins, paints, etc) will decrease their effectiveness.  Similarly, the floor can become an insulating barrier if it is not kept clean (or is made from an insulating material, such as wood or some resin finishes).  The antistatic properties of footwear may be checked regularly if a suitable instrument is provided, such as a simple, wall mounted conduction to ground monitor.

What has happened to the old Petroleum License?

The Government is modernising petroleum legislation, and part of that process has been brought about by DSEAR.  Historically, petroleum spirits were controlled by licenses issued under the Petroleum (Consolidation) Act 1928, but this requirement have been removed by DSEAR.  Except in cases where petroleum spirit that is being kept for dispensing into vehicles (retail and non-retail), DSEAR has replaced the externally (often local authority) checked and issued Petroleum License with a new internal risk assessment requirement.

What sort of arrangements do I need to make to deal with accidents, incidents and emergencies

The arrangements under DSEAR for dealing with accidents, incidents and emergencies build on those that should already be in place for fire safety and as required under Regulation 8 of the Management of Health and Safety at Work Regulations 1999.  DSEAR requires that the employer makes suitable arrangements to protect employees (and others) in the event of an accident or incident.  Typically, those arrangements should include:

• Suitable warning and communication systems (which may include visual and/or audible alarms);  
• Suitable escape facilities (the need for which will be identified by the risk assessment);
• Emergency procedures to be followed in the event of an incident;
• Provision of information and training on the emergency procedures to employees;
• Equipment and clothing for essential personnel dealing with the incident
• Simulated emergencies and practice drills
• Where appropriate, liaison with the emergency services to advise them that information on emergency procedures is available (and providing them with any information they consider necessary).

The exact scale and nature of the arrangements for dealing with accidents, incidents and emergencies should be proportionate to the risks and, hence, should be determined by the risk assessment. 

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Health and Safety - Record Keeping

This blog discusses the need for record keeping and discusses, by way of a few examples, the number and types of records that may be required and the type of information that should be recorded.  The size of the subject means that this article is an introduction only, not a definitive list.

Introduction

Record keeping for matters relating to health and safety is something that many organisations are poor at, yet suitable records kept in an accurate and retrievable form can make a significant contribution to the good management of an organisation and to legal defences (when being prosecuted or sued) and also to avoiding legal action in the first place.  Potentially, there are many records that an organisation could keep.  Careful consideration should be given to what records should be kept and for how long.  Some records are required to be kept be various pieces of legislation, while others may be useful in defending legal actions.  Many pieces of legislation require various records and documents to be kept, although few specify the exact nature of the record to be kept. 

Accident Records

As a minimum, details of all workplace injuries must be recorded in the Accident Book (Form B1510), as required by the Social Security (Claims and Payments) Regulations 1979.  Such records must be kept for at least three years from the date of an entry.

In the event of more serious accidents and injuries, there are reporting requirements under RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995).  These regulations require records of reportable injuries, diseases and dangerous occurrences to be kept for at least three years.  RIDDOR incidents may not be reported on-line or by phone, but all records must contain the basic information required by the HSE form F2508. 

Records should be made of all accident and incident investigations. These should record not only the details of the event, but all relevant finding of the investigation, including:

• Details of the accident/incident
• Details of all injuries and injured persons
• Details of all witnesses
• Causes of the accident/incident
• Details of corrective actions to prevent reoccurrence of the accident/incident.

Provision of Health and Safety Training and the keeping of Training Records

It is well established that training is a requirement of nearly all health and safety legislation.  The general requirement to provide suitable and sufficient, comprehensible training is introduced in the Health and Safety at Work, Etc Act 1974 (Section 2) and reinforced in the Management of Health and Safety at Work Regulations 1999 (Regulation 13).  The requirement to train employees is explicitly referred to in many pieces of legislation including (but not limited to): 

• Regulatory Reform Fire Safety Order 2005 (Article 21)
• Provision and Use of Work Equipment Regulations 1998 (Regulation 9)
• Personal Protective Equipment at Work Regulations 1992 (Regulation 9)
• Control of Substances Hazardous to Health Regulations 2002 (Regulation 12)

These various pieces of legislation do not, however, create a duty to keep records of training provided.  However, the guidance and codes of practice associated with the various pieces of legislation promote the need for records.  By way of example, the Approved Code of Practice to the Control of Substances Hazardous to Health Regulations 2002 make it clear that employers may find it helpful to keep a record of the training given to employees. The records may provide a useful checklist for ensuring that employees receive all the necessary training at the appropriate time. The records may also help to resolve any disputes that arise about whether the employer has provided a particular employee with a specific aspect of information, instruction and training.  It is recommended that training records are kept for six years from the date of training.

Risk Assessments

Risk Assessments are required under most modern health and safety legislation.  The general duty for risk assessments comes from the Management of Health and Safety at Work Regulations 1999 (Regulation 3), but (like training) also has a range of specific legislation creating specific risk assessment requirements, including:

• Regulatory Reform Fire Safety Order 2005 (Article 9)
• Health and Safety (Display Screen Equipment) Regulations 1992 (Regulation 2)
• Control of Substances Hazardous to Health Regulations 2002 (Regulation 6)
• Manual Handling Operations Regulations 1992 (Regulation 4)

The various pieces of legislation also provide that employers with five or more employees must record the significant findings of their risk assessment. The Approved Code of Practice to the Management of Health and Safety at Work Regulations 1999 sate that the (written) record should represent an effective statement of hazards and risks that then leads the management to take the relevant actions to protect health and safety. The record must be retrievable for use by management in reviews and for safety representatives (or other employee representatives) and visiting enforcing officers.  Records can be kept on paper or by electronic means provided that they are retrievable. They may be kept separately, or can form part of the same document as the health and safety policy. Records may have to be kept for a prescribed minimum period, as described under specific Regulations.

Health Surveillance Records

Health surveillance records are required by several pieces of legislation, including:

• Management of Health and Safety at Work Regulations 1999
• Control of Substances Hazardous to Health Regulations 2002
• Control of Asbestos Regulations 2012
• Control of Lead at Work Regulations 2002
• Control of Noise at Work Regulations 2005
• Control of Vibration at Work Regulations 2005

Using exposure to hazardous substances as an example: Regulation 11 of COSHH requires employers to maintain an up-to-date health record for each individual employee placed under health surveillance. This record should contain the information this is approved by HSE, namely:

• identifying details
• surname
• forenames
• gender
• date of birth
• permanent address and post code
• national insurance number
• date when present employment started
• a historical record of jobs in this employment involving exposure to identified substances requiring health surveillance;
• results of all other health surveillance procedures and the date on which and by whom they were carried out. The conclusions should relate only to the employee’s fitness for work and will include, where appropriate:
• a record of the decisions of the medical inspector or appointed doctor; or
• conclusions of the medical practitioner, occupational health nurse or other suitably qualified or responsible person

Personal Protective Equipment (PPE)

Employers have a duty to provide appropriate PPE to employees to help to control the risks, in a manner identified by risk assessment.  Further to this, the employer must take all reasonable steps to ensure that the PPE provided is worn and used appropriately.  To support this, the employer should keep appropriate records of:

• the risk assessment (see above)
• the issue of items of PPE
• maintenance details for items of PPE (to be kept for five years)
• records of training (see above)

Active Monitoring Records for the use of Control Measures

In order to discharge their duties with respect to ensuring the appropriate use of PPE (see above), the employer should also monitor the availability and appropriate use of PPE in the work place (whether on their own site or elsewhere).  Such active monitoring should be recorded and should encompass several related areas in one exercise.  Active monitoring is not restricted to the use of PPE, but to the appropriate use of control measures in aspects of health and safety.  There is no set format for recording active monitoring, but it is recommended that a simple recording format is used that allows compliance to be conformed easily (such as a tick list), but allows non-compliances to be recorded, along with details of the actions taken to correct these non-compliances.

Machinery Safety Inspection Records

There are many facets to machinery safety inspections and records.  Regulation 6 of the Provision and Use of Work Equipment Regulations 1998 (PUWER) creates a duty on employers to ensure that work equipment is inspected (by a competent) person when it is installed or moved and then at regular interval, according to need.  Regulation 6 (3) of PUWER creates a duty on the employer to ensure that the result of any such inspection is recorded and kept until the next such inspection is recorded.  There is no specific required format for this record, although the following information is recommended:

• information on the type and model of equipment
• any identification mark or number that it has
• normal location of equipment
• the date that the inspection was carried out
• who carried out the inspection
• information on any faults and/or any action taken
• identification of to whom the faults have been reported
• the date when repairs or other necessary action were carried out

Similarly, Regulation 32 of PUWER creates a duty on employers to ensure that power presses are inspected and are subject to thorough examination at appropriate intervals (at least once every twelve months for presses that have only fixed guards and at least once every six months in other instances, as well as whenever exceptional circumstances have arisen that are liable to jeopardise safety).  A report should be made (by the competent person) of every thorough examination and this should be submitted no later than 14 days after the examination. The ACoP for the Safe Use of Power Presses indicates that any suitable method of reporting may be used, subject to agreement between the employer and the competent person, although a signature is specifically required by Regulation 34(l)(b) of PUWER to authenticate the report.  The information to be included in this record is comprehensive and may be found in Schedule 3 of PUWER.

The risk assessment for the equipment or for the operation should also identify other records that should be kept, such as:

• regular inspection and testing of the machinery guarding
• regular inspection and testing of any safety devices
• regular inspection and testing of controls and emergency stop controls
• regular inspection and testing of the power/energy supplies to the equipment (such as electrical, pressurised systems, etc.) and associated isolations

Similarly to records required under PUWER, records of thorough examination are required for items of lifting equipment and for lifting accessories under the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER).

Other types of health and safety records that should be maintained by the employer

The list of other health and safety records that could be kept is vast, but includes:

• asbestos register
• authorised users lists, such as for:
• specific items of machinery and other work equipment
• fork lift trucks
• company vehicles
• certain hazardous substances (such as cyanides, Isocyanates, etc)
• permit to work documentation
• waste transfer notes
• fire safety records (such as a Fire Precautions Log Book)
• employee opt out (Working Time Regulations 1998, as amended) 
• records of time worked (Working Time Regulations 1998, as amended) 
• documents required under Control of Major Accident Hazards Regulations 1999 (such as: policy for prevention of major accidents, notification of the start of operations, on-site emergency plan, off -site emergency plan, etc.)
• information relating to communication and consultation with employers on matters relating to health and safety
• minutes of the safety committee meeting
• etc

Summary

There are many health and safety records that should be created and maintained.  In most cases, there is no set format for the record, although there, more often, a basis requirement for the information that is recorded.  Suitable records are one of the most important pieces of evidence that a Company can produce to demonstrate that it has complied with relevant health and safety law and met its legal requirements, such as to reduce the risk to as low a level as is reasonably practicable.

Michael Ellerby

LLB BSc CMIOSH MIIRSM MIFSM CChem MRSC CSci

Director

LRB Consulting Limited

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The need for records - health and safety (revisit)

I first posted this blog about two years ago. It is still true (and simple) now.

Recently, I spent a morning in Birmingham visiting a neat little site for a major client. There were a few niggly areas to address, but the main one (which seems to affect a huge number of sites) was the retrieval of relevant records. While almost everything was in place, it was difficult to establish this with the paperwork trail. The importance of the paperwork trail can be seen by considering safety to be split into two simple things:

1. The things that we do to protect ourselves, employees and others
2. The proof of what we have done

Clearly, it is the things that we do that are most important for protecting people from harm. The proof element becomes important after things have gone wrong or when there is an enforcement visit. The proof element is essential for protecting the Company from harm. By way on schoolboy analogy: "if you are called into the Head's office to be caned, ensure that you have book down the back of your trousers". 

The records are those books - your corporate protection.

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Hazardous substances or COSHH Cases

Case 1
In January this year, a bearings company was fined £20,000 (with costs of £15,000) following prosecution for exposing the workforce to hazardous substances in the form of metalworking fluids as a mist. The company was issued with an Improvement Notice, following an HSE visit in April 2007, to provide its workforce with adequate face protection, and to install adequate control measures on six machines, to prevent employees coming into direct contact with the mist. Inspectors returned in December 2007 and undertook a full safety audit across the whole site. Although the company complied with the Improvement Notice (and installed extractors on each machine) a subsequent inspection identified that the problem was more widespread and 100 other machines were also emitting metalworking fluid. Over the last five years there have been 15 reported cases of respiratory ill health (occupational asthma and extrinsic allergic alveolitis) from workers at the factory. This represents the second largest exposure of its kind in the UK at a single company.

Case 2
The UK's largest domestic manufacturer of energy and telecommunications cables and systems to service home and export markets was fined £27,500 and ordered to pay £10,700 costs, at Southampton Crown Court in September 2009. A factory worker was left with permanent disabilities and has been forced to retire on medical grounds at the age of 48 after contracting a severe form of dermatitis at his workplace. The company pleaded guilty to breaching Regulations 6(1)(a), 7(1), and 7(3) of the Control of Substances Hazardous to Health Regulations 2002. The site produced high-voltage cables, which contained paper insulation that was soaked in dodecylbenzene oil. As part of the quality testing, the worker cut sections out of the cables and the oil regularly came into contact with his skin. The worker was not provided with suitable personal protective equipment and suffered skin irritations across large parts of his body. As a result of the illness he has been left with permanent scarring and has to avoid contact with a large number of substances that cause further skin irritation.

The importance of Paperwork in health and safety

I first posted this blog about two years ago. It is still true (and simple) now.


Recently, I spent a morning in Birmingham visiting a neat little site for a major client. There were a few niggly areas to address, but the main one (which seems to affect a huge number of sites) was the retrieval of relevant records. While almost everything was in place, it was difficult to establish this with the paperwork trail. The importance of the paperwork trail can be seen by considering safety to be split into two simple things:

1. The things that we do to protect ourselves, employees and others
2. The proof of what we have done

Clearly, it is the things that we do that are most important for protecting people from harm. The proof element becomes important after things have gone wrong or when there is an enforcement visit. The proof element is essential for protecting the Company from harm. By way on schoolboy analogy: "if you are called into the Head's office to be caned, ensure that you have book down the back of your trousers. The records are those books - your corporate protection"